Image Copyrights, Fair Use, and Social Media

By Peter Roesler

President, Web Marketing Pros

Since man first painted pictures on walls, it’s been clear that people like images. Multiple studies have shown that images and videos are more likely to spread virally that text-based user-generated content. So, it’s no wonder that many internet marketers try to engage their audiences through imagery and videos. Problems can arise, however, when organizations aren’t mindful of the copyrights of the content they use. Copyright law can be confusing in general, and all the more so with social media. Still, it’s not necessary to hire a lawyer before posting an image. This post will go over the basics of what internet marketers need to know about images and copyright.

A good place to start a discussion on images and copyright law is to answer the question: “Why does it matter?”. The Internet has made it so easy to share information like photos, graphics, and videos, that people often forget to ask where the original content comes from. The answer, in most cases, is that someone was paid to make that content or that someone made the content in hopes of being paid for it. For example, many artists make money by selling their works to image services like Shutterstock, so they can be bought by individuals who want to use them, and the artist receives a commission for each download. So whenever, someone uses a copyrighted image they found on a search engine without paying for it, it costs the artist the money they deserve for the work they produced. Understandably, companies like Shutterstock and individual artists may take legal action against organizations and individuals that violate their copyright.

While few would argue that content creators shouldn’t be paid for the work they do, copyright infringement remains a huge problem on the internet. Part of this is due to a cavalier attitude toward copyright issues among the younger generations, but a large part of this is the result of a misunderstanding of the fair use exceptions of U.S. copyright law. While fair use limitations do allow some copyrighted images to be reproduced without compensating the creator, these limitations only apply to very specific situations. For example, search engines can use copyrighted images in search results, schools can use some images for scholastic purposes (but not always), and in some situations, commentaries and news reports can use images. But even in cases where fair use might be applicable, it still has to pass a multi-factor balancing test. According to the law, fair use is determined by considering: (1) the purpose of the use; (2) the nature of the work used; (3) the amount and substantiality of the work used; and (4) the effect of the use upon the potential market for or value of the work used. While in no sense a legal document, Kenneth D. Crews of Columbia University and Dwayne K. Butler of the University of Louisville have created a checklist that can help people determine if their use of an image is covered by fair use.

It’s important that people realize that it’s not enough to remove the copyright information from an image or to simply attribute where content originally came from. As was previously stated, content creators have a large stake in ensuring their work isn’t used without permission (i.e. payment) and search programs exist that can search for specific images. The consequences could be as minor as a cease-and-desist letter or an organization may receive a bill for use of the image. In the worst cases, the copyright owner could sue for damages that include the profits made from the use of the image. The point is that for businesses of any size, the risk of ignoring copyright issues is too great to disregard.

This doesn’t mean that all is lost when it comes to finding images to use online. Several websites offer royalty-free stock images and photographs. While the selection is less robust than pay services, the images found on sites like Stock.XCHNG can be used freely in most cases, except when otherwise noted. Also some artists, allow people to post their work just for the additional exposure. So it may be worth it to simply ask the creator via e-mail if they would approve of the use of their work.

The truth of the matter is that modern U.S. copyright laws were written nearly 40 years ago, when lawmakers couldn’t have envisioned a world where it would be this easy to create and spread content. There is a very real chance that the laws will change with time and as more cases come before the court that clearly define fair use for the digital age. All the same, most internet marketers wouldn’t want their organization’s to be involved in such a trial. Understanding the basics of copyright law can help protect an organization from costly and embarrassing litigation. Remember, all content creators get copyright protections, even without requesting it. So as a rule of thumb for copyright issues: If you aren’t sure, then don’t use it.